CBLDF has joined a basket of deplorable people and organizations on a Cato Institute-led amicus brief to the Supreme Court in Lee v. Tam, asking, “Should the government get to decide what’s a slur?” Among the deplorables who joined CBLDF on the brief are satirist P.J. O’Rourke; former ACLU president Nadine Strossen, Flying Dog Brewery (which once sued the state of Michigan over its attempt to stymie the sale of the brewery’s Raging Bitch IPA), and illustrator Ralph Steadman (who drew the label for Raging Bitch).
When an activist Asian-American rock band decided to choose a name that both affirms their racial identity and reclaims a racist term as a way to challenge stereotypes — The Slants — they likely didn’t expect to end up in front of the Supreme Court. They anticipated some blowback, sure, but then the U.S. Patent and Trademark Office (PTO) denied their trademark application.
The PTO determined that The Slants were in violation of portions of the Lanham Act, which denies registration to trademarks “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” Band leader Simon Tam took the PTO to court, arguing that the band’s First Amendment rights were violated. A three-judge panel of the Court of Appeals for the Federal Circuit disagreed, but the full court reversed the earlier ruling in a 9-3 decision that struck down the disparagement clause in the Lanham Act as unconstitutional. The PTO appealed to the Supreme Court.
Cato filed a brief in support of Tam, entitled “Brief of the Cato Institute and a Basket of Deplorable People and Organizations,” which David Post of The Washington Post called “an instant classic [that] is well worth reading — a nice illustration, among other things, that legal briefs can have serious doctrinal content while also being a hoot to read.”
Cato contends that a government entity should not determine what constitutes a racial slur. Further, the brief illustrates the ways in which the disparagement clause suppresses political speech, prevents the reclamation of terms from their pejorative use, and is so unconstitutionally vague that any trademark could be denied on the grounds that it offends some group or another. In the brief, Cato uses some potentially “disparaging” language to prove their point:
For example, one of this brief’s authors is a cracker (as distinct from a hillbilly) who grew up near Atlanta, but he wrote this sentence, so we can get away with saying that. Another contributor—unnamed because not a member of the bar—is an Italian American honky who has always wanted to play in a band called the Dagos, which of course would close every set with “That’s Amore” from “Lady and the Tramp.” But, with only his great grandparents having come from Italy, is he dago enough to “take back” the term? And amici’s lead counsel is a RussianJewish émigré who’s now a dual U.S.-Canadian citizen. Can he make borscht-belt jokes about Canuck frostbacks even though the first time he went to shul was while clerking in Jackson, Mississippi?
In their summary, Cato demands that “The Court should recognize that trademarks are in no way official speech and reaffirm that the government may not put its thumb on the scale to push controversial viewpoints out of the public square.”
The Supreme Court is set to hear arguments in the case on January 18. To read the entire brief — and for a good chuckle — click here.
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